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Minors and Cosmetic Surgery: an Argument for State Intervention

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Minors and Cosmetic Surgery: an Argument for State Intervention DePaul Journal of Health Care Law Volume 14 Issue 2 Spring 2012 Article 3 October 2015 Minors and Cosmetic Surgery: An Argument for State Intervention Derrick Diaz Follow this and additional works at: https://via.library.depaul.edu/jhcl Recommended Citation Derrick Diaz, Minors and Cosmetic Surgery: An Argument for State Intervention, 14 DePaul J. Health Care L. 235 (2012) Available at: https://via.library.depaul.edu/jhcl/vol14/iss2/3 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Health Care Law by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. MINORS AND COSMETIC SURGERY: AN ARGUMENT FOR STATE INTERVENTION Derrick Diaz* ABSTRACT: This article focuses on whether a state may intervene to prevent minors from obtaining medically unnecessary cosmetic surgery. The article concludes that a state may prohibit such a procedure without running afoul of parental liberty interests by showing severe risk of harm to the minor. Furthermore, the article proposes that minors not have access to cosmetic surgery unless found by a court to be medically necessary. If medical necessity has been shown, then the parental presumption must control. However, if medical necessity has not been shown, then the service should be prohibited the same as any regulated service or product prohibited to minors. Lastly, the article proposes the criteria under which a state may distinguish between cosmetic surgeries that are purely cosmetic and those that are medically necessary. J.D., Rutgers School of Law-Camden, 2012; B.A., Rutgers University-New Brunswick, 2009, Summa Cum Laude. I thank Prof. Kimberly Mutcherson, whose intellectual rigor continually sent me back to the drawing board, and who also made a legal thinker out of me. I also thank Prof Rand E. Rosenblatt, who patiently introduced me to the intriguing field of health care law. Most importantly, I thank my family, who endured me for three arduous law school years; and my daughter, passion for whom I borrowed to write this article. 236 DEPAUL JOURNAL OF HEALTH CARE LAW [VOL. 14.2:235 I. INTRODUCTION The American Society for Aesthetic Plastic Surgery ("ASAPS")' reported that minors2 obtained a total of 49,330 cosmetic surgical' procedures in 2007.4 In 2008, there were 42,980 performed on minors.' In 2009 there were 36,841 surgeries performed.6 And, in 2010, there were 33,610 performed on minors.' While it is true that the numerical total has declined, the representative percentage performed on minors to total cosmetic surgeries performed has remained nearly constant, at 2.4% in both 2007 and 2008.9 In 2009 there was a slight increase up to 2.5%,o and then a slight dip to 2.1%" in 2010. These data show that while the numerical total has been steadily dropping, the overall percentage of cosmetic surgeries performed on minors has remained steady. Moreover, if the percentage of surgeries on minors remains the same, when the grand numerical total increases again, the numerical total of such surgeries performed on minors will also increase. Dr. Camp et al, in his article on who is providing cosmetic surgery, argues that legislation is unlikely to address some of the risks involved with cosmetic surgery and, thus, the risks ought to be left to the invisible hand of the market to resolve.12 However, regardless of whether continued 1. The American Society for Aesthetic Plastic Surgery ("ASAPS") was founded in 1967 and is certified by the American Board of Plastic Surgery. ASAPS is an educational organization, sponsoring scientific meetings on advances in cosmetic plastic surgery. See About ASAPS, THE AMERICAN SOCIETY FOR AESTHETIC PLASTIC SURGERY, http://www.surgery.org/consumers/about (last visited Aug. 15, 2011). 2. Forty-eight states consider seventeen and below the age of minority, and eighteen or above the age of majority. See, e.g., ALASKA STAT. § 25.20.010 (2002); ARIz. REv. STAT. ANN. § 1-215 (West 2002); CAL. FAM. CODE § 25.1 (2002), HA. REV. STAT. ANN. § 577-1 (2002); D.C. CODE § 46-101 (2001); FLA. STAT. ANN. § 743.07 (2003); LA. CIV. CODE ANN. art. 29; MICH. COMP. LAWS § 722.4. The two exceptions to this rule are found in Alabama and Nebraska, which hold the age of majority at nineteen. ALA. CODE 26-1-1 (2002); NEB. REV. STAT. §43-2101 (2002). 3. To be clear, these data only refer to cosmetic surgery and do not include plastic surgery performed for reconstructive purposes. 4. The American Society for Aesthetic Plastic Surgery, Cosmetic Surgery NationalData Bank Statistics, 10 (2007), http://www.surgery.org/sites/default/files/2007stats.pdf. 5. The American Society for Aesthetic Plastic Surgery, Cosmetic Surgery National Data Bank Statistics, 10 (2008), http://www.surgery.org/sites/default/files/2008stats.pdf. 6. The American Society for Aesthetic Plastic Surgery, Cosmetic Surgery National Data Bank Statistics, 10 (2009), http://www.surgery.org/sites/default/files/2009stats.pdf. 7. The American Society for Aesthetic Plastic Surgery, Cosmetic Surgery National Data Bank Statistics, 10 (2010), http://www.surgery.org/sites/default/files/Stats2010 1 .pdf. 8. The American Society for Aesthetic Plastic Surgery (2007), supra note 3, at 10. 9. The American Society for Aesthetic Plastic Surgery (2008), supra note 4, at 10. 10. The American Society for Aesthetic Plastic Surgery (2009), supra note 5, at 10. 11. The American Society for Aesthetic Plastic Surgery (2010), supra note 6, at 10. 12. Matthew Camp et al., Who Is Providing Aesthetic Surgery? A Detailed Examination of the Geographic Distribution and Training Backgrounds of Cosmetic Practitioners in Southern California, 125 PLAST. RECONSTR. SURG. 1257, 1262 (2010). 2012] MINORS AND COSMETIC SURGERY 237 noninterference is sound policy generally speaking, it is absolutely not so with regard to minors, as states have statutory mandates to protect their health and welfare. 3 As such, minors should not have access to cosmetic surgery unless found by a court to be medically necessary. If a court declares the surgery medically necessary, then the parental presumption4 must control. However, if a court finds no medical necessity, then the service should be prohibited like any regulated service or product prohibited to minors. This article examines whether a state may intervene to prevent parents from obtaining cosmetic surgery for their child or adolescent. First, Part II explains the various foundational concepts regarding cosmetic surgery, differentiates it from plastic surgery, and lays out the risks involved with it. Next, it lays-out the foundational components of informed consent and details the constitutional principles underlying parental consent. Part III begins with an explanation of the parent-as-trustee paradigm and outlines the parental presumption. It also explains how the parental presumption can be rebutted through the showing-of-harm standard. Part III also proposes that, absent medical necessity and under a best-interests standard, minors should be denied access to cosmetic surgery - or, more precisely, delayed until age of majority. Part IV analyzes two scenarios, using the proposed rule, adapted directly from news headlines. II. COSMETIC SURGERY ON MINORS IS A RISKY ENTERPRISE A. The Cosmetic Surgery Rubric The root "plas" in plastic surgery is a Greek word which means "to form or shape."" And, "plastic surgery" is defined as the "surgical specialty or procedure concerned with the restoration, construction, reconstruction, or improvement in the form, function, and appearance of body structures that are missing, defective, damaged, or misshapen; encompasses both reconstructive and aesthetic surgery."l6 Plastic surgery 13. See, e.g., statutes note 147, infra. 14. A fit parent must be granted the presumption that they act in the best interest of their children. Troxel v. Granville,530 US 57, 68, 70 (2000). 15. Robert Kotler, Cosmetic or Plastic Surgery: What's the Difference?, WebMd (July 6, 2007), http://blogs.webmd.com/cosmetic-surgery/2007/07/cosmetic-surgery-or-plastic-surgery-whats-the- difference.html. 16. Medical Dictionary: Plastic Surgery, WebMd, http://dictionary.webmd.com/terms/plastic-surgery, citing Stedman's Medical Dictionary 28th ed. (2006) (emphasis added). 238 DEPAUL JOURNAL OF HEALTH CARE LAW [VOL. 14.2:235 is any surgery performed on any part of the body to affect its form, function, or both." Moreover, "surgery" is simply any process requiring an incision (cutting the skin) to perform a medical or medically related procedure." The purposes of plastic surgery are divided into two subgroups: reconstructive and corrective. 19Reconstructive purposes are for deformities caused by congenital defects, diseases, or traumas.20 Congenital deformities include any number of maladies: webbed toes or fingers; extra fingers or toes; women with abnormally large breasts, which may cause physical problems; facial defects from birth, like a cleft lip or palate, or those causing breathing problems or chronic infections - like those that affect the sinuses. 21 Deformities resulting from disease include those due to tumors (both cancerous and non-cancerous), or, any surgery performed to replace parts of the body affected by a disease, like cancer.22 Reconstructive purposes also include surgeries performed to reconstruct or replace parts of the body affected by trauma, such as skin grafts for those who have been severely burned or cut.23 On the other hand, surgeries performed for corrective purposes ("cosmetic surgery") are for purely aesthetic reasons. 24More specifically, they are performed for reasons other than functional benefit, or correcting deformities, or reconstructing deformities caused by disease or trauma.25 Said simply, cosmetic surgery is solely intended to improve upon what nature has already physically given to a person's appearance. 26 Note: this article only discusses cosmetic surgery because cosmetic surgery is not medically needed, whereas reconstructive procedures are medically 17.
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